In ‘Uncommon Event,’ Law School Profs Spar Online over EPA Plan

At Harvard Law School, contentious legal debates are commonplace. Whether in a classroom, over lunch, or in the pages of one of the school’s many legal journals, professors and students respond to, critique, and question one another’s views.

But notably, over the past week, University professor Laurence H. Tribe ’62 and Law School professors Richard J. Lazarus and Jody Freeman, in what Tribe described as an “uncommon event in Harvard Law School’s history,” took the discussion to the Harvard Law Today website.

The exchange began after Tribe testified before the U.S. House of Representatives Subcommittee on Energy and Power on the Environmental Protection Agency’s “Clean Power Plan.” He argued that the plan, which focuses on regulating greenhouse gases from coal-power plants, was unconstitutional and that “[b]urning the Constitution should not become part of our national energy policy.” The testimony grabbed headlines and the attention of his colleagues, sparking an online back-and-forth that has spanned almost a week.

On March 18, professors Lazarus and Freeman first responded to Tribe’s claims, writing, “Like most proposed rules, the Administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless.” The debate did not stop there: Tribe then responded on March 20. Lazarus and Freeman rebutted the next day; Tribe replied again March 22.

Lazarus said that he is not sure if the debate will continue.

“We have more we could say, but at some point I think you get diminishing returns. It’s quite clear we don’t agree,” he said.

Lazarus, who studied constitutional law under Tribe when he was a student at the Law School, said that he and Freeman, who both teach environmental law, decided to take the debate online when Tribe’s comments picked up significant media coverage.

“In the normal course of events, if a colleague says something you disagree with on law, you just invite them to lunch,” Lazarus said. “I wrote Larry and said that we weren’t doing that here because his views were getting such press elsewhere, that it wouldn’t be enough, that we actually needed to make it clear publicly, as well.”

For his part, Tribe, who has been at the Law School for years, said the exchange “could have genuine educational value, given the legal and the political centrality of the issues involved and their momentous significance for the future of the planet as well as for the health and integrity of our legal system.”

While the debate has certainly been rigorous, it has not, Lazarus said, been without some fun.

“We’ve tried to keep it in the sphere of collegiality and back-and-forth with some touch of humor, and I hope we’ve succeeded in that,” Lazarus said.

—Staff writer Andrew M. Duehren can be reached at andy.duehren@thecrimson.com. Follow him on Twitter @aduehren.